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STATE OF MINNESOTA /q’” i’ -_ “,

IN SUPREME COURT C&00- I4SY

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DANIEL GORDON, Individually and On Behalf of All Others Similarly Situated,

Plaintiff,

V.

MICROSOFT CORPORATION, and DOES 1 through 100, inclusive,

Defendants.

>

> 1 > > > > > ) > > ) >

Hennepin County District Court Fourth Judicial District

Civil No. 00-5994 The Honorable Bruce A. Peterson

> PHILIP A. MEDNICK, an individual, > Ramsey County District Court on behalf of himself and all others > Second Judicial District similarly situated, )

> Civil No. CO-OO- 1276 Plaintiff, > The Honorable Dale B. Lindman

> V. 1

>

MICROSOFT CORPORATION, ) a Washington corporation, >

) Defendant. 1

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MEMORANDUM OF PHILIP A. MEDNICK OPPOSING MOTION OF MICROSOFT CORPORATION TO TRANSFER AND CONSOLIDATE HIS CASE

Philip A. Mednick is the plaintiff in an action against Microsoft Corporation that is pending

in the Minnesota District Court in Ramsey County. Plaintiff Mednick’s Complaint alleges that

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Microsoft violated Mint-r. Stat. 0 325D.52, which makes unlawful, among other things, using

monopoly power to fix prices or to affect competition.

Plaintiff Mednick is a Minnesota citizen who purchased Microsoft’s Windows 98 software.

As a result of Microsoft’s monopolistic practices alleged in his Complaint, Plaintiff Mednick paid

a price for his Windows 98 software that was much greater than the price that would have been

charged in a competitive market. Plaintiff Mednick’s case is brought as a class action on behalf of

himself and all other similarly situated citizens of Minnesota. Since purchasers of this program

register electronically with Microsoft, the members of this class are readily identifiable.

Defendant Microsoft’smotion seeks an order from the Minnesota Supreme Court transferring

Plaintiff Mednick’s action from the Minnesota District Court in Ramsey County to the Minnesota

District Court in Hennepin County and consolidating Plaintiff Mednick’s action with Gordon v.

Microsoft, a case against Microsoft pending in Hennepin County. The Gordon case involves many

more claims against Microsoft and, hence, the case is more complex than Plaintiff Mednick’s action

and involves a far larger putative class. Defendant Microsoft’s motion also seeks an order from this

Court directing that Plaintiff Mednick’s case be consolidated with all future actions that might

become pending in any Minnesota District Court involving claims or factual allegations that are

“similar” to those in either Plaintiff Mednick’s case or in the Gordon case.

I. Defendant Microsoft’s Motion Must Be Denied Because The Supreme Court Lacks Jurisdiction Over Plaintiff Mednick’s Case And No Law Authorizes The Supreme Court To Grant The Relief Sought By Defendant’s Motion.

The Supreme Court of the State of Minnesota is “vested only with appellate jurisdiction,

except in such remedial cases as may be prescribed by law.” Holtberg v. Bommersbach, 235 Mimr.

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553, 51 N.W.2d 586, 587 (1952); Minn. Constitution, Article 6., Section 2. No judgment or

appealable order has been entered by the District Court in Plaintiff Mednick’s case. No appeal has

brought Plaintiff Mednick’s case before the Supreme Court. Since Plaintiff Mednick’s case is not

within the appellate jurisdiction of the Supreme Court, Defendant Microsoft’s motion is not properly

before the Supreme Court unless the motion is authorized by a statute.

Microsoft bases its motion on Minn. Stat. $480.16, which reads as follows:

480.16. Distribution of work of courts; duty of judges to comply with chief justice’s direction

The chief justice shall consider all recommendations of the court administrator for the assignment of judges, and has discretionary authority to direct any judge whose calendar, in the judgment of the chief justice, will permit, to hold court in any county or district where need therefor exists, to the end that the courts of this state shall function with maximum efficiency, and that the work of other courts shall be equitably distributed. The supreme court may provide by rule for the enforcement of this section and section 480.17.

This statute cannot be construed as authorizing the motion brought by Defendant Microsoft in the

Minnesota Supreme Court. The statute does not confer any jurisdiction whatsoever upon the

Supreme Court and does not direct the Supreme Court to do anything. Rather, the statute merely

gives the Chief Justice of the Minnesota Supreme Court discretionary authority to assign a district

court judge sitting in one district to also serve in another district. Nothing in the statute authorizes

a party to an action in a district court to bring a motion in the Supreme Court for an order affecting

the disposition of a case pending in a district court. Therefore, Minn. Stat. 9 480.16 does not

authorize Microsoft’s motion.

Even if Minn. Stat. 6 480.16 could somehow be construed as authorizing Microsoft to bring

a motion in the Supreme Court, the statute does not provide for the relief sought by Microsoft, i.e.

an order transferring Mednick’s case to another judicial district and consolidating it with other cases

against Microsoft. The statute says nothing about either transfer or consolidation. Nothing in the

statute authorizes the Supreme Court to issue orders in a case pending before a district court.

Instead, the plain language of the statute provides the Supreme Court with no authority whatsoever

but only gives its Chief Justice discretionary authority to direct a judge in one judicial district to also

serve in another district.

Microsoft calls its motion a request to transfer but it is actually a motion to change the venue

of Mednick’s case. In addition to the reasons given above, Minn. Stat. 0 480.16 cannot be read as

providing a means to transfer cases between judicial districts in light of the specific provisions of

Chapter 542 of the Minnesota Statutes respecting venue. Minn. Stat. $542.01 provides that every

civil action will be tried in the county where it is begun unless the venue is changed as provided in

Chapter 542. In light of the specificprovisionsin Chapter 542 regarding venue, Minn. Stat. $480.16

cannot be construed as providing a vehicle to change the venue of a case.

Microsoft’s reliance on Rule 42.01 of the Rules of Civil Procedure is also misplaced. Rule

1 of the Rules of Civil Procedure provides that said rules govern procedure in the district courts of

the State of Minnesota. Hence, Rule 42.01 cannot be construed as authorizing the Supreme Court

to consolidate cases pending in the district courts.

Defendant Microsoft relies on the order of this Court In Re: Minnesota Vitamin Antitrust

Litipation, 2000 WL 210213 (Feb. 17, 2000). This order does not provide authority for the relief

sought by Defendant Microsoft for a number of reasons. First, the order in the Minnesota Vitamin

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Antitrust Litigation was issued with the consent of all of the parties that had appeared. Consent of

the parties is lacking in this situation because Plaintiff Mednick objects to the order requested by

Microsoft. Second, the order in the Minnesota Vitamin Antitrust Litigation does not direct the

transfer of any case from one district to another but only appoints a single judge to hear all of the

cases. Third, the order does address whether or not the various cases should be consolidated.

Therefore, the order relied on by Defendant Microsoft in making this motion is not a precedent

establishing that it is entitled to the relief sought by its motion.

For the above reasons, the Supreme Court does not have jurisdictionover Microsoft’smotion

and no statute authorizes the relief requested by the motion. Therefore, Microsoft’s motion should

be dismissed.

II. Plaintiff Mednick’s Case Should Not Be Reassigned To Judge Peterson.

Microsoft moves that Mednick’s case be reassigned from Judge Lindman sitting in the

Minnesota District Court in Ramsey County to Judge Peterson sitting in the MinnesotaDistrict Court

in Hennepin County. Mednick opposes this motion.

As discussed in the preceding section of this memorandum, Minn. Stat. 3 480.16 gives the

Chief Justice of the Minnesota Supreme Court discretionary authority to assign a judge sitting in one

judicial district to also serve in another one. If Microsoft’s motion is construed as a request to the

Chief Justice that she reassign Mednick’s case to another judge, the Chief Justice should deny the

request.

Minn. Stat. 8 480.16 does not authorize the Chief Justice to micro-manage the administration

of the district courts by assigning particular judges to specific cases. Instead, the statute

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contemplates that the Chief Justice will macro-manage the work load of the courts by assigning a

judge sitting in one judicial district to also serve in another district which needs help due to its

workload. Hence, the order sought by Microsoft, i.e. an order reassigning Mednick’s case from

Judge Dale B. Lindman of the Ramsey County District Court to Judge Bruce A. Peterson of the

Hennepin County District Court, is not one authorized by Minn. Stat. 3 480.16.

Even if an order assigning Mednick’s case to Judge Peterson were permissible under Minn.

Stat. 5 480.16, reassignment of Mednick’s case would not be appropriate. Microsoft wants

Mednick’s case assigned to Judge Peterson because the Gordon case is pending before him. The

assumption behind Microsoft’s request is that Mednick’s case and the Gordon case’ need to move

in lock-step. This assumption is wrong.

Plaintiff Mednick’s case involves a single Microsoft product, Windows 98. This product has

been on the market only about two years. All of the members of the class which Plaintiff Mednick

seeks to represent registered their licenses with Microsoft electronically and, hence, are readily

identifiable.

The Gordon and the other cases against Microsoft referenced in Microsoft’s motion involve

all of the operating systems sold by Microsoft over many years. For example, the plaintiff in the

Gordon case seeks to represent Minnesota purchasers of any operating system for a personal

computer licensed by Microsoft on or after May 18, 1994. The operating systems involved could

include Windows 3.11, Windows for Workgroups, Windows NT Workstation, Windows 95 and

‘Microsoft also an s w t all future “similar” cases against it to be assigned to Judge Peterson, including any cases remanded to state court from MDL 1332 and the local transferee federal districts.

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Windows 98. As a result, the Gordon case and the other cases against Microsoft involve many

products and many years of discovery and litigation. These cases are not similar to Mednick’s

action, except that they are brought against the same defendant.

The difference in the task facing Plaintiff Mednick and the tasks faced by the plaintiffs in the

other Minnesota cases against Microsoft is monumental. Evidence establishing that Microsoft

unlawfully used monopoly power in selling Windows 98 was admitted in the consolidated trial of

United States v. Microsoft Cornoration and New York v. Microsoft Cornoration. In his findings and

conclusions in that case, Judge Thomas Penfield Jackson found that Microsoft violated the antitrust

laws with respect to Windows 98 and Q& with respect to the Windows 98 operating system does

Judge Jackson reach the conclusion that Microsoft engaged in unlawful exclusionary

monopolization. All the evidence introduced against Microsoft in the consolidated trial is admissible

in Mednick’s case under Rule 804(b)( 1) of the Minnesota Rules of Evidence. There were no specific

findings respecting any of the earlier Microsoft products mentioned above. In other words, the

liability case against Microsoft for illegal monopolization respecting Windows 98, i.e. Plaintiff

Mednick’s case, has been made, but the various causes of action remain to be proved for the other

Microsoft products involved in the Gordon case and the other Minnesota cases.

The Mednick case should not be tied to the other cases against Microsoft in Minnesota.*

Because Microsoft’s liability for illegal monopolization respecting Windows 98 was established in

*The scope and status of the cases commenced against Microsoft in Minnesota are set forth on the chart attached hereto. The complaints in these cases are attached to Microsoft’s moving papers. The chart illustrates the diverse nature of these cases with respect to scope of putative classes, standing of class representatives, the time periods for purchase and the variety of Microsoft products involved. This summary shows that Mednick’s case is distinct from the others.

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the consolidated trial, Mednick’s case will be ready to proceed to trial long before the other cases

while it appears that substantial discovery and other work will be required to prove that Microsoft

illegally used monopoly power respecting the other Windows products involved in the other cases

sought to be consolidated.

Microsoft contends that the proceedings in the Mednick case need to be’coordinated with

those in the other Minnesota actions against it by a single judge. However, such a need is not

demonstrated by Microsoft’s moving papers. No reason is offered why Microsoft would be

prejudiced if Mednick’s case proceeds to trial before the other cases. A decision on the claims

alleged in Mednick’s case will be final and those claims cannot be retried in any other case.

Microsoft does not face a risk of more than one trial on these claims.

CONCLUSIQN

For the reasons advanced herein, Mednick asks that Microsoft’s motion be dismissed by the

Supreme Court and that the Chief Justice not reassign his case to the judge of another judicial

district.

Dated:

3 10 Groveland Avenue Minneapolis, MN 55403 (612) 874-8550

ATTORNEYS FOR PLAINTIFF

CASES SUBJECT TO CONSOLIDATION REQUEST

Plaintiff Class Representative Standing Putative Class Status of Case

Philip A. Mednick Purchaser of Windows 98 upgrade and Dell Computer “All end user licensees of Windows 98 residing in the State of Minnesota, with Windows 98 operating system built in. (710 - State of Minnesota as to whom Microsoft has an District Court, Ramsey Complaint) electronic mail address that is computer-accessible by County.

Microsoft.” (716 - Complaint)

Rubbright Group Plaintiff is a Minnesota corporation which purchased a “All individuals and entities who purchased Windows Removed to federal computer installed with Windows 98. (17 - Complaint) from entities or persons other than Microsoft in the State court and transferred to

of Minnesota.” (718 - Complaint) Windows products are MDL 1332 in identified as MS-DOS Windows 3.11, Windows for Baltimore, Maryland. Workgroups, Windows NT Workstation, Windows 95, Windows 98 (712 - Complaint)

Steven Nielsen

David Jaffe

Plaintiff is an indirect purchaser of Microsoft Windows “All persons or entities who indirectly purchased, leased Removed to federal and Internet Explorer. (78 - Complaint) or licensed Microsoft Windows or Microsoft Internet court and transferred to

Explorer, in Minnesota, for their own use and not for MDL 1332 in resale.” (fill - Complaint) Baltimore, Maryland.

Plaintiff David Jaffe paid for and licensed in his name “all persons or entities in the State of Minnesota who Removed to federal an Intel-compatible PC operating system licensed by purchased for purposes other than re-sale or distribution court and transferred to Microsoft and installed in a Compaq Presario personal on or after May 18, 1994 . . . Intel-compatible PC MDL 1332 in computer. In addition, Plaintiff recently paid for and operating systems licensed by Microsoft.” (18 - Baltimore, Maryland. licensed in his name the Windows ‘98 upgrade, on Complaint) Intel-Compatible PC operating system licensed by Microsoft, which was purchased at Best Buy for approximately $90.00. (74 - Complaint)

Daniel Gordon Plaintiff Daniel Gordon paid for and licensed in his “all persons or entities in the State of Minnesota who State of Minnesota, name an Intel-compatible PC operating system licensed purchased for purposes other than re-sale or distribution District Court, Hennepin by Microsoft and installed in a Gateway personal on or after May 18, 1994 . . . Intel-compatible personal County. computer. (14 - Complaint) computer operating systems licensed by Microsoft,” (78

- Complaint)

dy Klein Plaintiff Idy Klein purchased a Pentium PC computer “This class action is brought on behalf of all residents and Removed to federal in 1997 which included the Windows 95 operating citizens of Minnesota who, up to the date of the filing of court and transferred to system. (17 - Complaint) this Complaint and for four years prior, bought any MDL 1332 in

version of Windows from Microsoft, or purchased a Baltimore, Maryland. personal computer with Windows pre-installed.” (71 - Complaint)

KRAUSE SL ROLLINS CHARTERED

ATTORNEYS AT LAW 3 10 GROVELAND AVENUE

MINNEAPOLIS, MINNESOTA 55403

DAVID E. KRAUSE

OFFICE OF APPELLATE COURTS

RONALD L. ROLLINS JAMES B. HOVLAND* AUGl 8 2000 (612) 874-8550 GEORGE E. ANTRJM III** FAX (612) 874-9362

* ALSO ADMITTED IN NORTH DAKOTA ** CERTIFIED CIVIL TRIAL SPECIALIST

August 18 +WED

HAND DELIVERED

Frederick K. Grittner Supreme Court Administrator Supreme Court 305 Minnesota Judicial Center 25 Constitution Avenue St. Paul, MN 55 155-6102

RE: Memorandum Opposing Motion of Microsoft Corporation to Transfer and Consolidate the following cases: Daniel Gordon v. Microsoft Corporation Hennepin County Civil No. 00-5994 Philin A. Mednick vs. Microsoft Cornoration Ramsey County Civil No. CO-00-1276

Dear Mr. Grittner:

Enclosed for filing with the Minnesota Supreme Court please find an original and four copies of the Memorandum of Philip A. Mednick Opposing Motion of Microsoft Corporation to Transfer and Consolidate his Case.

I understand that your office has not yet assigned a number to this matter. Please contact Court Commissioner, Richard S. Slowes, regarding the han

use I DEK:amn Enclosures

OFFICE OF APPELLATE 0-j ~QTS

STATE OF MINNESOTA AUG 2 2 2000 AFFIDAVIT OF SERVIC

COUNTY OF HENNEPIN

METRO LEGAL SERVICES

Greg DeGrace, being duly sworn, on oath says: that on the 18th day of August, 2000,

at 3:24 p.m. (s)he served the attached Memorandum of Philip A. Mednick Opposing

Microsoft Corporation’s Motion to Transfer and Consolidate His Case upon David R.

Crosby, Esq. therein named, personally at 150 S. !jth Street, #2200, Minneapolis,

County of Hennepin, State of Minnesota, by handing to and leaving with David R.

Crosby, Esq., a true and correct copy thereof.

Charge $28.00

CHOUA XIONG NOTARY PUBLIC-MINNESOTA

Re: 4445

STATE OF MINNESOTA AUG 2 2 2000 AFFIDAVIT OF SERVICE

COUNTY OF HENNEPIN I=IED (g(y-%~W

METRO LEGAL SERVICES

Geoff Egerman, being duly sworn, on oath says: that on the 18th day of August, 2000,

at 4:00 p.m. (s)he served the attached Memorandum of Philip A. Mednick Opposing

Microsoft Corporation’s Motion to Transfer and Consolidate His Case upon Richard M.

Hagstrom, Esq. therein named, personally at 33 S. 6’h Street, Minneapolis, County of

Hennepin, State of Minnesota, by handing to and leaving with Sandra Forsythe,

receptionist, an expressly authorized agent for service for said Richard M. Hagstrom,

Esq., a true and correct copy thereof.

Mp Commission Explrcs Jan. 31.2005

Charge $28.00 Re: 4445